STATE OF NEW JERSEY v. MALACHI FEAGINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5240-03T25240-03T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALACHI FEAGINS,

Defendant-Appellant.

_________________________________

 

Submitted May 22, 2006 - Decided June 13, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of

New Jersey, Law Division, Atlantic County, 95-04-0866.

Malachi Feagins, appellant pro se.

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his second petition for post conviction relief. We affirm. On February 27, 1996, a jury found defendant, Malachi Feagins, guilty of knowing or purposeful murder, N.J.S.A. 2C:11-3a(1) or (2), possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Prior to the commencement of trial, the judge granted defendant's motion to sever the fourth count, possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b, and to conduct a bench trial on that count. After the jury reached its verdict, the judge also found defendant guilty of the fourth count based upon the evidence established at trial.

Defendant appealed and we affirmed the conviction, but remanded for resentencing, in an unpublished opinion, No. A-5858-95T4 (App. Div. November 5, 1997). Certification was denied, 153 N.J. 50 (1998). Defendant's first PCR petition was denied without an evidentiary hearing by the trial judge on February 28, 2001. We affirmed the denial in an unpublished opinion, No. A-3929-00T4 (App. Div. October 8, 2002). On March 18, 2003, the Supreme Court denied certification, 176 N.J. 72 (2003).

Defendant filed his second PCR petition, on April 28, 2003. Argument was heard on December 11, 2003. On January 7, 2004, Judge Neustadter issued a letter opinion denying defendant's petition. He found that (1) defendant's PCR petition was time barred under R. 3:22-12; (2) defendant was barred from raising ineffective assistance of his trial counsel because we disposed of that issue on the appeal of his first PCR application; (3) PCR appellate counsel, contrary to defendant's argument, presented to us the points raised by him in his supplemental pro se brief; (4) defendant's assertions not previously raised should have been raised on direct appeal, or in his prior PCR petition, or on appeal from the denial of his first PCR petition; and (5) there was no need for an evidentiary hearing because defendant failed to present in his petition a prima facie case that any of his counsel, including counsel representing him during his first PCR appeal, were ineffective.

Defendant appeals, raising the following points:

POINT I

THE PROCEDURAL TIME BAR (3:22-12) SHOULD BE RELAXED, PURSUANT TO R. 1:1-2 BECAUSE DEFENDANT TRIED TIMELY RAISE [SIC] THE ISSUES AND ADHERENCE TO IT RESULTS IN A FUNDAMENTAL INJUSTICE AND DENIAL OF DEFENDANT'S U.S. AND STATE CONSTITUTIONAL RIGHTS. U.S. CONST. AMEND. V, VI, AND XIV, N.J. CONST. (1947) ART. 1, PARA. 10.

POINT II

THE TRIAL COURT'S ERRONEOUS RULING IN HIS DENIAL OF DEFENDANT'S PETITION FOR PCR RELIEF VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS RESULTING IN A FUNDAMENTAL INJUSTICE.

POINT III

DEFENDANT'S ISSUES FROM HIS FIRST PCR HEARING SHOULD BE RE-LITIGATED TO PREVENT A FUNDAMENTAL INJUSTICE AND BECAUSE THEY ARE OF CONSTITUTIONAL DIMENSION. U.S. CONST. AMEND. V, VI, XIV AND N.J. CONST. (1947) ART. 1, PARA. 10.

We are satisfied, after carefully reviewing the entire record and the arguments raised by counsel and defendant pro se, that the issues raised are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Neustadter in his letter opinion of January 7, 2004. We add the following brief comments.

Defendant claims that the judge improperly decided that we found on the first PCR appeal that defendant failed to establish that PCR appellate counsel was ineffective. Defendant mischaracterizes Judge Neustadter's finding. The judge correctly found that defendant did not present a prima facie showing to warrant a hearing on the effectiveness of appellate counsel on the earlier PCR appeal.

Defendant also asserts that appellate counsel on his direct appeal was ineffective because she failed to request an extension to permit him to file an additional pro se brief. However, we dealt with the arguments he maintains that he would have made in his pro se supplemental brief respecting the propriety of Marcia Collins' testimony and prosecutorial misconduct in the previous PCR appeal and found that they were barred under R. 3:22-4 because they could have reasonably been raised on direct appeal. Simply put, defendant's contentions fail to establish ineffective assistance of counsel by demonstrating the reasonable likelihood of succeeding under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984).

Judge Neustadter correctly found that defendant failed to present a prima facie showing to meet the second prong of Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698, respecting any of his counsel. Defendant's final contention that he should be allowed to re-litigate the merits of his first PCR application is expressly proscribed by R. 3:22-5.

Affirmed.

 

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A-5240-03T2

June 13, 2006